State of Punjab v Gurmit Singh 1996

हिंदी में पढ़ने के लिए यहां क्लिक करें

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Full Case Details

DR. ANAND, J. – The prosecutrix a young girl below 16 years of age, was studying in the 10th class at the relevant me in GovernmentHigh School, Pakhowal. The matriculaon examinaons were going on at the material me. The examinaon centre of the prosecutrix was located in the boys’ High School, Pakhowal. On 30-3- 1984 at about 12.30 p.m. aer taking her test in Geography, the prosecutrix was going to the house of her maternal uncle, Darshan Singh, and when she had covered a distance of about 100 karmas from the school, a blue Ambassador car being driven by a Sikh youth aged 20/25 years came from behind. In that car Gurmit Singh, Jagjit Singh @ Bawa and Ranjit Singh accused were sing. The car stopped near her. Ranjit Singh accused came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car. Accused Jagjit Singh @ Bawa put his hand on the mouth of the prosecutrix, while Gurmit Singh accused threatened the prosecutrix, that in case she raised an alarm she would be done to death. All the three accused (respondents herein} drove her to the tube well of Ranjit Singh accused. She was taken to the ‘kotha’ of the tube well. The driver of the car aer leaving the prosecutrix and the three accused persons there went away with the car. In the said kotha Gurmit Singh compelled the prosecutrix to take liquor, misrepresenng to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor. Gurmit Singh then got removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh commied rape upon her. She raised roula as she was suffering pain but Gurmit Singh threatened to kill her if she persisted in raising alarm. Due to that threat, she kept quiet. Aer Gurmit Singh had commied rape upon her, the other two accused, who were earlier guarding the kotha from outside, came in on by one and commied rape upon her. Jagjit Singh alias Bawa commied rape on her aer Gurmit Singh and thereaer Ranjit Singh commied rape on her. Each one of the accused commied sexual intercourse with the prosecutrix forcibly and against her will. They all subjected her to sexual intercourse once again during the night against her will. Next morning at about 6.00 a.m. the same car arrived at the tube well kotha of Ranjit Singh and the three accused made her sit in that car and left her near the Boys’ High School, Pakhowal near about the place from where she had been abducted.

The prosecutrix had to take her examinaon in the subject of Hygiene on that date. She, aer taking her examinaon in hygiene, reached her village Nangal-Lalan, at about noon me and narrated the enre story to her mother, Smt Gurdev Kaur PW 7. Her father Tirlok Singh PW 6 was not present in the house at that me. He returned from his work late in the evening. The mother of the prosecutrix, Smt Gurdev Kaur, PW 7, narrated the episode to her husband Tirlok Singh PW 6 on his arrival. Her father straightaway contacted Sarpanch Joginder Singh of the village. A panchayat was convened. Maer was brought to the noce of the Sarpanch of Village Pakhowal also. Both the Sarpanches tried to effect a compromise on 1-4-1984 but since the panchayat could not give any jusce or relief to the prosecutrix, she along with her father proceeded to the Police Staon, Raikot to lodge a report about the occurrence with the police. When they reached the bus adda of Village Pakhowal, the police met them and she made her statement, Ex. PD, before ASI Raghubir Chand PW who made an endorsement, Ex. PD/I and sent the statement Ex. PD. of the prosecutrix to the Police Staon Raikot for registraon of the case on the basis of which formal FIR Ex. PD/2 was registered by SI Malkiat Singh. ASI Raghubir Chand then took the prosecutrix and her mother to the primary health centre Pakhowal for medical examinaon of the prosecutrix. She was medically examined by lady doctor, Dr. Sukhwinder Kaur, PW 1 on 2-4-1984, who found that the hymen of the prosecutrix was lacerated with fine radiate tears, swollen and painful. Her pubic hair were also found maed. According to PW I intercourse with the prosecutrix could be “one of the reasons for laceration which I found in her hymen”. She went on to say that the possibility could not be ruled out that the prosecutrix “was not habitual to intercourse earlier”

2. During the course of invesgaon, the police took into possession a sealed parcel handed over by the lady doctor containing the salwar of the prosecutrix along with 5 slides of vaginal smears and one sealed phial containing pubic hair of the prosecutrix, vide memo Ex. PK. On the poinng out of the prosecutrix, the invesgang officer prepared the rough site plan Ex. PF, of the place from where she had been abducted. The prosecutrix also led the invesgang officer to the tube well kotha of Ranjit Singh where she had been wrongfully confined and raped. The invesgaon officer prepared a rough site plane of the kotha Ex. PM. A search was made for the accused on 2-4-1984 but they were not found. They were also not traceable on 3-4-1984, in spite of a raid being conducted at their houses by the ASI .On 5-4-1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before the invesgang officer by Gurbachan Singh PW 8 and were placed under arrest. Both Ranjit Singh and Jagjit Singh on the same day were produced before Dr B.L. Bansal PW 3 for medical examinaon. The doctor opined that both accused were fit to perform sexual intercourse. Gurmit Singh respondent was arrested on 9-4-1984 by SI Malkiat Singh. He was also got medically examined on 9-4-1984 by Dr B.L. Bandal PW 3 who opined that Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels containing the slides of vaginal smears, the pubic hair and the salwar of the prosecutrix, were sent to the chemical examiner. The report of the chemical examiner revealed that semen was found on the slides of vaginal smear through no spermatozoa was found either on the pubic hair or the salwar of the prosecutrix. On compleon of the invesgaon, respondents were challaned and were charged for offences under Secons 363, 366,368 and 376 IPC.

3. With a view to connect the respondents with the crime, the prosecuon examined Dr Sukhwinder Kaur, PW I; prosecutrix, PW 2; Dr B.L. Bansal, PW 3; Tirlok Singh, father of the prosecutrix, PW 6; Gurudev Kaur, mother of the prosecutrix, PW 7; Gurbachan Singh, PW 8; Malkiat Singh, PW 9; and SI Raghubir Chand, PW 10; besides, some formal witnesses like the drasman etc. The prosecuon tendered in evidence affidavits of some of the constables, whose evidence was of a formal nature as also the report of the chemical examiner, Ex. PM. In their statements recorded under Secon 313 Cr.P.C. the respondents denied the prosecuon allegaons against them. Jagjit Singh respondent stated that it was a false case foisted on him on account of his enmity with the Sarpanch of Village Pakhowal. He stated that he had married a Canadian girl in the village gurdwara, which was not liked by the Sarpanch and therefore, the Sarpanch was hosle to him and had got him falsely implicated in this case. Gurmit Singh respondent took the stand that he had been falsely implicated in the case on account of enmity between his father and Tirlok Singh, PW 6, father of the prosecutrix. He stated that there was long-standing ligaon going on between his father and the father of the prosecutrix and their family members were not even on speaking terms with each other. He went on to add that on 1-4-1984 he was given a beang by Tirlok Singh, PW 6, on grounds of suspicion that he might have insgated some persons to abduct his daughter and in retaliaon he and his elder brother on the next day had given a beang to Tirlok Singh, PW 6 and also abused him and on that account Tirlok Singh PW, in consultaon with the police had got him falsely implicated in the case. Ranjit Singh respondent also alleged false implicaon but gave no reasons for having been falsely implicated. Jagjit Singh alias Bawa produced DW I Kuldip Singh and DW 2 MHC, Amarjit Singh in defence and tendered in evidence Ex. DC, a photostat copy of his passport and Ex. DD copy of a cerficate of his marriage with the Canadian girl. He also tendered into evidence photographs marked ‘C’ and’ D’ evidencing his marriage with the Canadian girl. The other two accused however did not lead any defence evidence.

4. The trial court first dealt with the prosecuon case relang to the abducon of the prosecutrix by the respondents and observed:
The first point for appreciaon before me would arise whether this part of the prosecuon story stands forfied by any cogent or reliable evidence or not. There is a bald allegaon only of prosecutrix (name omied) that she was forcibly abducted in a car. In the FIR she stated that she was abducted in an Ambassador car of blue colour. Aer going through the evidence, I am of the view that this thing has been introduced by the prosecutrix or by her father or by the thanedar just to give the gravity of offence. Prosecutrix (name omied) was tested about the parculars of the car and she is so ignorant about the make etc. of the car that enre story that she was abducted in the car becomes doubul. She stated in her cross-examinaon at page 8 that the make of the car was Master. She was pernently asked whether the make of the car was Ambassador or Fiat. The witness replied that she cannot tell the make of the car. But when she was asked as to the difference between Fiat, Ambassador or Master car, she was unable to explain the difference amongst these vehicles. So, it appears that the allegaons that she was abducted in a Fiat car by all the three accused and the driver is an imaginary story which has been given either by the thanedar or by the father of the prosecutrix.

If the three known accused are in the clutches of the police, it is not difficult for them to come to know about the car, the name of its driver etc., but strange enough, SI Raghubir Chand has shown piable negligence when he could not find out the car driver in spite of the fact that he directed the invesgaon on these lines. He had to admit that he made search for taking the car into possession allegedly used in the occurrence. He could not find out the name of the driver nor could he find out which car was used. In these circumstances, it looks to be improbable that any car was also used in the alleged abducon. (omission of name of the prosecutrix ours)

The trial court further commented:
On 30-3- 1984 she was forcibly abducted by four desperate persons who were out and out to molest her honour. It has been admied by the prosecutrix that she was taken through the bus adda of Pakhowal via metalled road. It has come on the evidence that it is a busy centre. In spite of that fact she had not raised any alarm, so as to aract persons that she was being forcibly taken. The height of her own unnatural conduct is that she was le by the accused at the same point on the next morning. The accused would be the last persons to extend sympathy to the prosecutrix. Had it been so, the natural conduct of the prosecutrix would have been first to rush to the house of her maternal uncle to apprise him that she had been forcibly abducted on the previous day. The witness aer being le at the place of abducon lightly takes her examinaon. She does not complain to the lady teachers who were deployed to keep a watch on the girl students because these students were to appear in the centre of Boys’ School. She does not complain to anybody or to her friend that she was raped during the previous night. She prefers her examinaon rather than go to the house of her parents or relaons. Thereaer, she goes to her village Nangal-Kalan and informs for the first me her mother that she was raped on the previous night. This part of the prosecuon story does not look to be probable.

5. The trial court, thus, disbelieved the version of the prosecutrix basically for the reasons: (i) “she is so ignorant about the make etc. of the car that enre story that she was abducted in the car becomes doubtful” particularly because she could not explain the difference between a Fiat car, Ambassador car or a Master car; (ii) the invesgang officer had “shown pitiable negligence” during the investigation by not tracing out the car and the driver; (iii) that the prosecutrix did not raise any alarm while being abducted even though she had passed through the bus adda of Village Pakhowal; (iv) that the story of abducon “has been introduced by the prosecutrix or by her father or by the thanedar just to give the gravity of offence” and (v) that no corroboraon of the statement of the prosecutrix was available on the record and that the story that the accused had le her near the school next morning was not believable because the accused could have no ‘sympathy’ for her.

6. The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the tesmony of the prosecutrix did not inspire confidence for the reasons
(i) that there had been delay in lodging the FIR and as such the chances of false implicaon of the accused could not be ruled out. According to the trial court, Tirlok Singh PW 6 became certain on 1-4-1984 that there was no outcome of the meeng between the panchayats of Nangal-Kalan and Pakhowal, therefore, there was no jusficaon for him not to have lodged the report on 1-4-1984 itself and since Tirlok Singh had “entered into consultations with his wife as to whether to lodge the report or not, it rendered the matter doubtful”;
(ii) that the medical evidence did not help the prosecuon case. The trial court observed that in her cross examinaon PW 1 lady doctor had admied that whereas intercourse with the prosecutrix could be one of the reasons for the laceration of the hymen “there could be other reasons also for that laceration”. The trial court noticed that the lady doctor had inserted a vaginal speculum for taking swabs from the posterior vaginal fornix of the prosecutrix for preparing slides and since the width of the speculum was about two fingers, the possibility that the prosecutrix was habituated to sexual intercourse could not be ruled out”. The trial court observed that the prosecutrix was “fighting her imagination in order to rope in the accused persons” and that implicit reliance could not be placed on the testimony “of such a girl”;
(iii) there was no independent corroboraon of her tesmony and
(iv) that the accused had been implicated on account of enmity as alleged by the accused in their statements recorded under Secon 313 Cr.P.C.

7. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sancty and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was student of X class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in FIR was of no material effect on the reliability of her tesmony. No fault could also be found with the prosecuon version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of jusce. The court overlooked the situaon in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and prevenng her from raising any alarm. Again, if the invesgang officer did not conduct the invesgaon properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the tesmony of the prosecutrix? The prosecutrix had no control over the invesgang agency and the negligence of an invesgang officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discreding the tesmony of the prosecutrix on the account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecuon but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons parcularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputaon of the prosecutrix and the honour of her family. It is only aer giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecuon has explained that as soon as Tirlok Singh PW 6, father of the prosecutrix came to know from his wife, PW 7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tube well kotha of Ranjit Singh rape was commied, and an effort was made by the panchayats of the two villages to sit together and sele the mater. It was only when the Panchayats failed to provide any relief or render any jusce to the

prosecutrix, that she and her family decided to report the maer to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputaon and future prospects of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully admied that he entered into consultaon with his wife as to whether to lodge a report or not and the trial court appears to have misunderstood the reasons and jusficaon for the consultaon between Tirlok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubul. Her statement about the manner in which she was abducted and again le near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradicons and variaons in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observaons of the trial court that the story of the prosecutrix that she was le near the examination centre next morning at about 6 a.m. was “not believable” as “the accused would be the last persons to extend sympathy to the prosecutrix” are not at all intelligible. The accused were not showing “any sympathy” to the prosecutrix while driving her at 6.00 a.m. next morning to the place from where she had been abducted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examinaon centre so as to avoid being detected. The cricism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examinaon at the centre and waited ll she went home and narrated the occurrence to her mother is unjusfied. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court overlooked that a girl, in a tradion-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chasty had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society.

Her not informing the teachers or her friends at the examinaon centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumac experience she had undergone and would feel terribly embarrassed in relaon to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclinaon would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examinaon centre prior there is in accord with the natural human conduct of a female. The courts must, while evaluang evidence, remain alive to the fact that in a case of rape, no self-respecng woman would come forward in a court just to make a humiliang statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestaon, supposed consideraons which have no material effect on the veracity of the prosecuon case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecuon case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The tesmony of the vicm in such cases is vital and unless there are compelling reasons which necessitate looking for corroboraon of her statement, the courts should find no difficulty to act on the tesmony of a vicm of sexual assault alone to convict an accused where her tesmony inspires confidence and is found to be reliable. Seeking corroboraon of her statement before replying upon the same as a rule in such cases amounts to, adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestaon, be viewed with doubt, disbelief or suspicion?

The court while appreciang the evidence of a prosecutrix may look for some assurance of her statement to sasfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboraon of her statement to base convicon of an accused. The evidence of a vicm of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a vicm of a sexual offence is entled to great weight, absence of corroboraon notwithstanding. Corroborave evidence is not an imperave component of judicial credence in every case of rape. Corroboraon as a condion for judicial reliance on the tesmony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treang her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realisc diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of tesmonial tyranny making jusce a casualty. Courts cannot cling to a fossil formula and insist upon corroboraon even if, taken as a whole, the case spoken of by the vicm of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain, Ahmadi, J. (as the Lord Chief jusce then was) speaking for the Bench summarised the posion in the following words:

A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a vicm of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material parculars. She is undoubtedly a competent witness under Secon 118 and her evidence must receive the same weight as is aached to an injured in cases of physical violence. The same degree of care and cauon must aach in the evaluaon of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels sasfied that it can act on the evidence of the prosecutrix, there is no rule of law or pracce incorporated in the Evidence Act similar to Illustraon (b) to Secon 114 which requires it to look for corroboraon. If for some reason the court is hesitant to place implicit reliance on the tesmony of the prosecutrix it may look for evidence which may lend assurance to her tesmony short of corroboraon required in the case of an accomplice. The nature of evidence required to lend assurance to the tesmony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entled to base a convicon on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong move to falsely involve the person charged, the court should ordinarily have no hesitaon in accepng her evidence.

8. We are in respecul agreement with the above exposion of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her tesmony suffers from no infirmity or blemish whatsoever. We have no hesitaon in acng upon her tesmony alone without looking for any ‘corroboration’. However, in this case there is ample corroboraon available on the record to lend further credence to the tesmony of the prosecutrix.

9. The medical evidence has lent full corroboraon to the tesmony of the prosecutrix. According to PW 1 lady doctor Sukhwinder Kaur she had examined the prosecutrix on 2-4- 1984 at about 7.45 p.m. at the Primary Health Centre, Pakhowal, and had found that “her hymen was lacerated with fine radiate tears, swollen and painful”. The pubic hair was also matted. She opined that intercourse with the prosecutrix could be “one of the reasons for the laceration of the hymen” of the prosecutrix. She also opined that the “possibility cannot be ruled out that (prosecutrix) was not habitual to intercourse earlier to her examinaon by her on 2-4-1984”. During her cross-examinaon, the lady doctor admied that she had not inserted her fingers inside the vagina of the prosecutrix during the medico-legal examinaon but that she had put a vaginal speculum for taking the swabs from the posterior vaginal fornix for preparing the slides. She disclosed that the size of the speculum was about two fingers and agreed with the suggeson made to her during her cross- examination that “if the hymen of a girl admits two fingers easily, the possibility that such a girl was habitual to sexual intercourse cannot be ruled out”. However, no direct and specific queson was put by the defence to the lady doctor whether the prosecutrix in the present case could be said to be habituated to sexual intercourse and there was no challenge to her statement that the prosecutrix “may not have been subjected to sexual intercourse earlier”. No enquiry was made from the lady doctor about the tear of the hymen being old. Yet, the trial court interpreted the statement of PW l Dr Sukhwinder Kaur to hold that the prosecutrix was habituated to sexual intercourse since the speculum could enter her vagina easily and as such she was “a girl of loose character”. There was no warrant for such a finding and the finding if we may say so with respect, is a wholly irresponsible finding. In the face of the evidence of PW I, the trial court wrongly concluded that the medical evidence had not supported the version of the prosecutrix.

10. The trial court totally ignored the report of the chemical examiner (Ex. PM) according to which semen had been found on the slides which had been prepared by the lady doctor from the vaginal secreons from the posterior of the vaginal fornix of the prosecutrix. The presence of semen on the slides lent authenc corroboraon to the tesmony of the prosecutrix. This vital evidence was forsaken by the trial court and as a result wholly erroneous conclusions were arrived at. Thus, even though no corroboraon is necessary to rely upon the tesmony of the prosecutrix, yet sufficient corroboraon from the medical evidence and the report of the chemical examiner is available on the record. Besides, her statement has been fully supported by the evidence of her father, Tirlok Singh, PW 6 and her mother Gurdev Kaur, PW 7, to whom she had narrated the occurrence soon aer her arrival at her house. Moreover, the unchallenged fact that it was the prosecutrix who had led the invesgang officer to the kotha of the tube well of Ranjit Singh, where she had been raped, lent a built-in assurance that the charge levied by her was ‘genuine’ rather than ‘fabricated’ because it is no one’s case that she knew Ranjit Singh earlier or had ever seen visited the kotha at his tube well. The trial court completely overlooked this aspect. The trial court did not disbelieve that the prosecutrix had been subjected to sexual intercourse but without any sound basis, observed that the prosecutrix might have spent the ‘night’ in the company of some ‘persons’ and concocted the story on being asked by her mother as to where she had spent the night aer her maternal uncle, Darshan Singh, came to Nangal-Kalan to enquire about the prosecutrix. There is no basis for the finding that the prosecutrix had spent the night in the company of “some persons “ and had indulged in sexual intercourse with them of her own free will. The observaons were made on surmises and conjectures – the prosecutrix was condemned unheard.

11. The trial court was of the opinion that it was a ‘false’ case and that the accused had been implicated on account of enmity. In that connecon it observed that since Tirlok Singh PW 6 had given a beang to Gurmit Singh on 1-4-1984 suspecng his hand in the abducon of his daughter and Gurmit Singh accused and his elder brother had abused Tirlok Singh and given a beang to Tirlok Singh PW 6 on 2-4-1984, “it was very easy on the part of Tirlok Singh to persuade his daughter to name Gurmit Singh so as to take revenge”. The trial court also found that the relaons between the family of Gurmit Singh and of the prosecutrix were strained on account of civil ligaon pending between the pares for 7/8 years prior to the date of occurrence and that was also the reason to falsely implicate Gurmit Singh. However the posive evidence of PW 6 and PW 7 that there was no ligaon pending between PW 6 and the father of Gurmit Singh completely belied the plea of the accused. If there was any civil ligaon pending between the pares as alleged by Gurmit Singh, he could have produced some documentary proof in support thereof but none was produced. Even Mukand Singh, father of Gurmit Singh, did not appear in the witness box to support the plea taken by Gurmit Singh. Even if it be assumed for the sake of argument that there was some such ligaon, it could hardly be a ground for a father to put forth his daughter to make a wild allegaon of rape against the son of the opposite party, with a view to take revenge. It defies human probabilies. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil ligaon. Again, if the accused could be falsely involved on account of that enmity, it was equally possible that the accused could have sexually assaulted the prosecutrix to take revenge from her father, for aer all enmity is a double-edged weapon, which may be used for false implicaon as well as to take revenge. In any case, there is no proof of the existence of such enmity between PW 6 and the father of Gurmit Singh which could have prompted PW 6 to put up his daughter to falsely implicate Gurmit Singh on a charge of rape. Ranjit Singh, apart from stang that he had been falsely implicated in the case did not offer any reasons for his false implicaon. It was at his tube well kotha that rape had been commied on the prosecutrix. She had pointed out that kotha to the police during invesgaon. No ostensible reason has been suggested as to why the prosecutrix would falsely involve Ranjit Singh in the commission of such a heinous crime and nominate his kotha as the place where she had been subjected to sexual molestaon by the respondents. The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to the extent of staking their reputaon and future in order to falsely set up a case of rape to sele pey scores as alleged by Jagjit Singh and Gurmit Singh, respondents.

12. From the statement of the prosecutrix, it clearly emerges that she was abducted and forcibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situaon the queson of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occurrence. Their evidence is supported by the birth cerficate (Ex. PJ). Both Tirlok Singh (PW 6) and Gurdev Kaur (PW 7), the father and mother of the prosecutrix respecvely, explained that inially they had named their daughter, the prosecutrix, as Mahinder Kaur but her name was changed to… (name omied), as according to The Holy Guru Granth Sahib her name was required to start with the word ‘chhachha’ and therefore in the school-leaving cerficate her name was correctly given. There was nothing to disbelieve the explanaon given by Tirlok Singh and Gurdev Kaur in that behalf. The trial court ignored the explanation given by the parents observing that “it could not be swallowed being a belated one”. The trial court was in error. The first occasion for inquiring from Tirlok Singh (PW 6) about the change of the name of the prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no earlier occasion for him to have made any such statement. It was, therefore, not a belated explanaon. That apart, even according to the lady doctor (PW 1), the clinical examinaon of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth cerficate Ex. PJ was not only supported by the oral tesmony of Tirlok Singh PW 6 and Gurdev Kaur PW 7 out also by that of the school-leaving cerficate marked’ B’ .With a view to do complete justice, the trial court could have summoned the official concerned from the school to prove various entries in the school leaving cerficate. From the material on the record, we have come to an unhesitang conclusion that the prosecutrix was less than 16 years of age when she was made a vicm of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any posive finding as to whether or not the prosecutrix was below 16 years of age on 30-3-1984 and instead went on to observe that “even assuming for the sake of argument that the prosecutrix was less then 16 years of age on 30-3-1984, it could sll not help the case as she was not a reliable witness and was aempng to shield her own conduct by indulging in falsehood to implicate the respondents”. The entire approach of the trial court in appreciang the prosecuon evidence and drawing inferences there from was erroneous.

13. The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably ever characterised her as “a girl of loose morals” or “such type of a girl”.

14. What has shocked our judicial conscience all the more is the inference drawn by the court, based on no evidence and not even on a denied suggeson, to the effect: The more probability is that (prosecutrix) was a girl of loose character. She wanted to dupe her parents that she resided for on night at the house of her maternal uncle, but for reasons best known to her, she did not do so and she preferred to give company to some persons.

15. We must express our strong disapproval of the approach of the trial court and its casng a sgma on the character of the prosecutrix. The observaons lack sobriety expected of a judge. Such like sgmas have the potenal of not only discouraging an even otherwise reluctant vicm of sexual assault to bring forth complaint for trial of criminals, thereby making the society suffer by leng the criminal escape even a trial. The courts are expected to use self-restraint while recording such findings which have larger repercussions so far as the future of the vicm of the sex crime is concerned and even wider implicaons on the society as a whole -where the vicm of crime is discouraged ; the criminal encouraged and in turn crime gets rewarded!. Even in cases, unlike the present case, where there is some acceptable material on the record show that the vicm was habituated to sexual intercourse, no such inference like the victim being a girl of “loose moral character” is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No sgma, like the one as cast in the present case should be cast against such a witness by the courts, for aer all it is the accused and not the vicm of sex crime who is on trial in the court.

16. As a result of the aforesaid discussion, we find that the prosecutrix has made a truthful statement and the prosecuon has established the case against the respondents beyond every reasonable doubt. The trial court fell in error in acquing them of the charges levelled against them. The appreciaon of evidence by the trial court is not only unreasonable but perverse. The conclusions arrived at by the trial court are untenable and in the established facts and circumstances of the case, the view expressed by it is not a possible view. We accordingly, set aside the judgment of the trial court and convict all the three respondents for offences under Secons 363/366/368 and 376 IPC. So far as the sentence is concerned, the court has to strike a just balance. In this case the occurrence took place on 30-3-1984(more than 11 years ago). The respondents were aged between 21- 24 years of age at the me when the offence was commied. We are informed that the respondents have not been involved in any other offence aer they were acquied by the trial court on 1-6-1985, more than a decade ago. All the respondents as well as the prosecutrix must have by now got married and seled down in life. These are some of the factors which we need to take into consideraon while imposing an appropriate sentence on the respondents. We accordingly sentence the respondents for the offence under Secon 376 IPC to undergo five years’ R.I. each and to pay a fine of Rs. 5000 each and in default of payment of fine to 1 year’s R.I. each. For the offence under Section 363 IPC we sentence them to undergo three years’ R.I. each but impose no separate sentence for the offence under Secons 366/368 IPC. The substanve sentences of imprisonment shall, however, run concurrently.

17. This Court, in Delhi Domesc Working Women’s Forum v. Union of Indiahad suggested, on the formulaon of a scheme, that at the me of convicon of a person found guilty of having commied the offence of rape, the court shall award compensaon.

18. In this case, we have, while convicng the respondents, imposed, for reasons already set out above, the sentence of 5 years’ R.I. with fine of Rs 5000 and in default of payment of fine further R.I. for one year on each of the respondents for the offence under Secon 376 IPC. Therefore, we do not, in the instant case, for those very reasons, consider it desirable to award any compensaon, in addion to the fine already imposed, parcularly as no scheme also appears to have been drawn up as yet.

20. Of late, crime against women in general and rape in parcular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show lile or no concern for her honour. It is a sad reflecon on the atude of indifference of the society towards the violaon of human dignity of the vicms of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault , it is oen destrucve of the whole personality of the vicm. A murderer destroys the physical body of his vicm; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensivity. The courts should examine the broader probabilies of a case and not get swayed by minor contradicons or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecuon case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboraon of her statement in material parculars. If for some reason the court finds it difficult to place implicit reliance on her tesmony, it may look for evidence which may lend assurance to her tesmony, short of corroboraon required in the case of an accomplice. The tesmony of the prosecutrix must be appreciated in the background of the enre case and the trial court must be alive to its responsibility and be sensive while dealing with cases involving sexual molestaons.

21. There has been lately, lot of cricism of the treatment of the vicms of sexual assault in the court during their cross-examinaon. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of connual quesoning of the prosecutrix as to the details of the rape. The vicm is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to aempt to twist the interpretaon of events given by her so as to make them appear inconsistent with her allegaons. The court, therefore, should not sit as a silent spectator while the vicm of crime is being cross-examined by the defence. It must effecvely control the recording of evidence in the court. While every latude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross- examinaon, the court must also ensure that cross-examinaon is not made a means of harassment or causing humiliaon to the vicm of crime. A vicm of rape, it must be remembered, has already undergone a traumac experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.

22. The alarming frequency of crime against women led Parliament to enact the Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more realisc. By the Amendment Act, Secons 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a woman under their custody or care. Secon 114-A was also added in the Evidence Act for drawing a conclusive presumpon as to the absence of consent in certain prosecuons for rape, involving such custodians. Secon 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended.

23. In spite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realize its importance for hardly does one come across a case where the inquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape “shall be conducted in camera” as occurring in sub-secon (2) of Secon 327 Cr.P.C is not only significant but very important. It casts a duty on the court to conduct the trial of rape cases etc. invariably “in camera”. The courts are obliged to act in furtherance of the intenon expressed by the legislature and not to ignore its mandate and must invariably take recourse to the provisions of Secon 327 (2) and (3) Cr.P.C. and hold the trial of rape cases in camera. It would enable the vicm of crime to be a lile comfortable and answer the quesons with greater ease in not too familiar surroundings. Trial in camera would not only be in keeping with the self-respect of the vicm of crime and in tune with the legislave intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and siing truth from falsehood. The High Courts would therefore be well-advised to draw the aenon of the trial courts to the amended provisions of Secon 327 Cr.P.C. and to impress upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than in the open court. Wherever possible, it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the courts to properly discharge their dues, without allowing the truth to be sacrificed at the altar of rigid technicalies while appreciang evidence in such cases. The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their order to save further embarrassment to the vicm of sex crime. The anonymity of the vicm of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the vicm in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial courts would take recourse to the provisions of Secons 327(2) and (3) Cr PC liberally. Trial of rape cases in camera should be the rule and an open trial in such cases, an excepon.